short and insightful writing about a long and complex history

Drug Law Exceptionalism?

One of the rewards of blogging is an instant boost to your awareness of what others are doing with the same sort of forum. Among other places, it’s led me to Mexican Opium, a (short-term?) blog project by law student Mikelis Beitiks. I’m sure my co-Managing Editor would be happy to learn that the blog is at least partly a forum for work that wasn’t published in traditional journal format. For me, I’m happy to see more work being done on the legal foundations of our war on drugs. Here’s why:

The enactments of drug laws have received a lot of attention. Indeed, as I noted in an earlier post, I think they probably receive relatively more attention than they deserve. It tends to divert our attention to the remarkably disturbing history of those laws in action, to say nothing of informal social dynamics around psychoactive substances. But there’s an irony here. Although modern drug law enactments and their treatment in the courts (and here I’m speaking from the vantage point of United States history) have been given a lot of time, they’ve too often been studied in isolation. The more that happens, the more we drift into a kind of “drug law exceptionalism” in which everything is assumed to have a kind of weird uniqueness.

Back to Mikelis Beitiks for a moment. Here’s his most recent post, “Drugs? Law? How?” in which he looks back at a really interesting 1890 court decision from Washington State (Territory v. Ah Lim). Read this post. Go back and read the case! Terrific stuff, and I’m grateful to Beitiks for digging it up again. The question he poses is a good one: why exactly do we talk about “government and personal drug use in the same sentence?” The answer he comes up with is that it had, at least in Territory v. Ah Lim, has a lot to do with the users–in this case, opium smoking Chinese. So far, so good. But how exceptional is that? I daresay there’s a whole lot of 19th (and 20th) century policy making and judging informed by dread/fear/suspicion of the racial/sexual/cultural “other”–what makes us think drugs would be any different? Of course, that’s just another way of saying things are generally even worse than you’d imagine. But there are greater problems with exceptionalism than just forgetting that things are bad everywhere.

One that I’d like to talk about is the danger of becoming unmoored from context. Let me quote just a bit from Beitiks here, talking about the author of the Territory v. Ah Lim decision: “At the time, the idea of a law banning personal drug use would have been seen as a comically overextended stretch of government power. So, Dunbar finds himself in a position of defending a law that most 1890s Washingtonians would have found inexcusably invasive if it affected them, but support because it target the opium-smoking Chinese.” Maybe. But what was the state of alcohol prohibition in 1890? There were already state-level prohibition laws in place by then. Indeed, what of the use of the criminal law to police personal moral behavior more generally. William J. Novak, writing in The People’s Welfare, argues that [p. 149] “of all the contests over public power in that period [the 19th century], morals regulation was the easy case.” Later, he observes [p. 157] that “despite such sentimental attachment to houses as quintessentially private spheres, public realities intruded all the time.” So to what extent would Dunbar’s opinion in this case really have been that shocking? How much did it really depend on the force of anti-Chinese sentiment to make sense to those that read it at the time? Indeed, do the existence of a whole range of controls on public morals suggest that the foundations of our drug laws are multiple, and hard to reduce to a single variable like hostility to particular groups of users?

Please note that I’m not in any way suggesting that anti-Chinese sentiment wasn’t a large part of the enactment of laws targeting smoking opium, and the subsequent enforcement of those laws. That would almost go without saying, if it didn’t bear repeating so much. But, we simply cannot study drug laws in isolation, or we risk failing to understand all of the dimensions of this particular exercise of state power.

Final note: I want to stress that I’m delighted to have found Beitiks’ Mexican Opium. Good for him for re-plowing this particular field. It is long overdue. His posts are beautifully written, and I’ll keep reading.

UPDATE (January 26, 2011): Beitkis has produced a thoughtful reply to this post, which you can read here.

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8 thoughts on “Drug Law Exceptionalism?”

[…] This is his post. I have to tell, you, in less than 24 hours, this gentleman cranked out a supremely engaging and readable piece. He blogs with the Alcohol and Drugs History Society. The blog is filled with other great stuff related to early drug law that don’t mention Mexican Opium, as well. […]

Professor Spillane – I have to say that I’m honored that you saw the blog post. I came across your book on Cocaine while doing research for the paper that set off my blog project, and I reference it in my footnotes. Thanks for re-blogging the post, and for commenting. I’m just getting going on this project, so the kind words are appreciated.

I’m as new to blogging as you are, it seems, and keeping with I believe is blogging back-scratching etiquette, I’ve linked back to your blog on my blog, and posted a response to your post.

Thanks again for checking out my work, and I would love any suggestions of books or trails you think would be productive for someone doing research like mine to endeavor.

Actually, you don’t even have to go to alcohol prohibition to make the argument that there were a whole range of controls on people’s behavior, and that reducing the logic of regulation to a hostility toward racial minorities risks missing a lot of what was going on. You can do it just by looking at state-level pharmacy regulation, of which the criminalization of opium joints was one part. Clearly, racial animosity was a key issue in white attitudes toward opium. But there was a whole lot of other stuff going on as well in terms of regulating pharmaceuticals. By 1890 state level laws regulating opium and morphine were quite common; some of this was about targeting Chinese opium dens, but it was also about preventing whites from committing suicide, shoring up the professional status of pharmacists, trying to ensure drug purity, preventing women from using opium to cause abortions, and a variety of other factors. Personally, I wouldn’t argue that this reduces the importance of race –as I see it, all this stuff is inherently about race — but it does mean that it wasn’t all about white fears of Chinese people smoking opium in a narrow sense. By 1890 people were starting to get pretty comfortable with state governments regulating a variety of commodities, for a large number of reasons.

By the way, just for the sake of shameless self-promotion, I recently had an article about this issue come out: Joseph M. Gabriel, “Restricting the Sale of ‘Deadly Poisons’: Pharmacists, Drug Regulation, and Narratives of Suffering in the Gilded Age” *Journal of the Gilded Age and Progressive Era*, July 2010, 313-336.

This post started me thinking about the relationship between drug prohibition and cultural conceptions of the distinction between public and private spheres and what those mean. A recent edition of my favorite podcast, Backstory with the American History Guys (backstoryradio.org) looked at the US Census, addressing the issues of government intrusion in particular. The point was made that the expectation of privacy is for most people quite new and until some time in the 19th century people would assume that their actions would be scrutinized. Chuck Ambler

[…] box set of work, well in advance of the holiday shopping season. Readers of this blog may remember this collegial exchange I had with Beitiks regarding that history; his greatest hits list is highly […]

[…] to study the narrative threads in isolation from other contemporary areas of law and policy (see this post for more) or in isolation from one another. Mara Keire’s study, For Business & Pleasure: […]

[…] spent precious little time acknowledging that work. Dedicated readers of Points will remember this early exchange with Mikelis Beitiks of the Mexican Opium blog, including his thoughtful response. There’s […]